The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1887-12-07

is to be deemed common nuisance because it
may have been maintained prior to the passage
of the statute as a place for manufacturing in
toxcating liquors. The statute Is prospective
in its operatlous-that is, 1t does not pat the
brand of q common nuisance upon any place.
unless, after its passage, that place is kept and
maintained for purposes declared by the Legls-
lature to be injurious TO the community. Nor
is the court required to adjudge any place to be
a common nuisance simply because it is charged
by the State to be SUCH It must find IL to be
of that character-that is, mus: ascertain In
some legal mode whether. since the statute was
passed, the place in question has been, or IS be-
ing, so used would make it a common
nuisance Equally tenable is the proposition
that proceedings in equity for the purposes in
dicated in the thirteenth section Of the statute
are inconsistent with due process of law.
"'In regard to public nuisances Story says.
the jurisdiction of courts of equity seems to be
of q very ancient date. and has been distinctly
traced back to the reign of Queen Elizabeth.
The jurisdiction IL applicable not only to public
nuisances strictly so called, but also to pur-
prestures public rights and property: In
of public nuisances. properly 80 called. an
indictment lies to ahate them and punish the
offenders. But an information also lies in equity
to redress the grievance by way of Injunction
e, Storys E0.. paragraphs 92l, 922l
The ground of this jurisdiction in cases OF
pnrpresture, as we'll as of public nuisances. is
the ability of courts of equity to give a more
speedy, permanent, and eheetual remedy than
can be had at law. In the first place, they
interpose. when the courts OF law cannot to re-
strain and prsvent such nuisances which
threatened or are in progress, as well as abate
perpetual injunction, the remedy is made com
plete through all time, whereas information
or indictment at the common law can onlv dis
pose of the present nuisance, and for future
new prosecutions must be brought In The
next place. court of equity may be prompt
and immediate before irreparable mischief is
done whereas at law nothing be done ex-
cept after trial and upon the award of judg-
ment In the next place. a court of equity will
not only interfere upon the information Of the
Attorney-eenera but also upon the application
of private parties directly affected by the pui-
sance; whereas at law in many cases the RENE
dy is. or may be, solely through the instru-
mentality of the Attorney general" II. Story's
E., 924l.
Vo,. 2, p. 259, ct seq. the author that the
jurisdiction OF courts of equity in cases of pur-
pressure and nuisances. though not frequently
exercised. is undoubted Ii is founded in the
right to restrain the exercise or the erection OF
that from which irreparable damage to indivId-
uals great public injury would eusue tAttor-
ney-eeneral, VS.. n. j. railroad. etc. 3. Green's
Railroad Company, 10 Gray. 245 Attorney-pen-
eral vs.. Tudor Ice Company, 104 Mass. 244
State vs. Mayor & Co.. Porter Ala, 279. 294;
Hoole etc, vs.. Attorney general, % Ala, 1874;
Attorney-general vs. Hunter. Dew Eq. Is; Attor-
neE-eeneral We. Forbes, Mylne and Craig 123.
129. 133; Attornev-eenersi vs. Great Northern
hallway Company. Dr. and SIN. ,161; Kerr on In
functions, I'd ed, 16S
'.As to the objection that the statute makes
20 provision for a jury trial In cases like this
one il is sufficient to say that such a mode OF
trial is not required in suits in equity brought
to enjoin public nuisance The statutory d-
rection that an injunction issue at the COM
mencement of the action is not to be construed
as dispensing with such preliminary proof as is
necessary to lay the foundation for iniunc-
ton pending the suit The court is not to issue
an Injunction simply because is asked, or
because the charge is made that common nui-
sance is maintained in violation of law The
statute leaves the court liberty TO give effect
to the principle that In junction will not be
granted to restrain nuisance, except upon
clear and satisfactory evidence to the fact.
Here the fact TO be ascertained was, not
whether place Kept and maintained for the
purposes forbidden by the statute was
nuisance-that fact being copclusively deter
mined by the statute itself-but whether the
place in question was so kept aud main tanned
II the proof upon that point is not full and
isfactory the can refuse injunction or
postpone action until the State first obtains the
verdict of jury in her favor.
SIN this case il cannot be denied that the de-
PENDANTS kept and maintained place that is
within the statute definItion of uui-
sance. Their petition for tho removal OF the
cause from the State court and their answer TO
the bill admitted every fact necessary TO main
tain this suit if the statute under which it was
brought was constitutional Touching the pro-
vision that in prosecutions. by indictment or
otherwise the State need not. in the first in
stance. prove that the defendant has the permi.
required by the statute, we observe that if liz
has any application to proceeding like this. it
does not deprive him of the presumption that he
Is innocent of any violation of law. 1t is onlv
dec sration that when the State has proved that
the place described is kept and maintained for |
the purpose of the manufacture and sale of IN /
toxicatiug liquors, The prosecution mead not |
prove a Overwhelmingly that the defendant |
has not the required license permit. If a de- |
PENDANT has such license permit he can easily |
produce II, and thus overthrow the prima facie |
case established by the State.
"A portion of the argument in behalf of the |
defendants is to the effect that the statutes of /
Kansas forbid the manufacture OF Intoxicating |
liquors to be exported or TO be carried 10 other |
States, and upon that ground are iepugnant to |
the clause of the Constitution OF the United |
States giving Congress power TO regulate COM |
merce with foreign nations and among the sew